India : Gay couple launch legal battle over same-sex marriage

The love sto­ry of Utkarsh Sax­e­na and Ananya Kotia start­ed like any col­lege romance. How­ev­er, no one knew of the gay cou­ple’s relationship.

It was 2008. Homo­sex­u­al­i­ty was still unac­cept­able in con­ser­v­a­tive India, and many gay cou­ples faced stig­ma and lone­li­ness. There­fore, Sax­e­na and Cotia spent a lot of time research­ing the changes in peo­ple who accept­ed homo­sex­u­al­i­ty from a distance.

“We were actu­al­ly very scared of the con­se­quences,” says Sax­e­na, a pro­fes­sor of pub­lic pol­i­cy at the Uni­ver­si­ty of Oxford. “We were a very frag­ile and vul­ner­a­ble young cou­ple dis­cov­er­ing them­selves, so I did­n’t want to take the plunge that would break us in a way.”

Years lat­er, when Indi­an soci­ety became homo­sex­u­al and much of the coun­try’s LGBTQ com­mu­ni­ty open­ly cel­e­brat­ed their sex­u­al­i­ty, the cou­ple decid­ed to open their rela­tion­ship to friends and fam­i­ly. . Most peo­ple accept­ed it.

After 15 years of dat­ing, they took on a big­ger chal­lenge and filed a peti­tion in Indi­a’s Supreme Court to legal­ize same-sex mar­riage. Three oth­er same-sex cou­ples have filed sim­i­lar peti­tions, which are due to be heard before the coun­try’s Supreme Court in March.

Legal­iz­ing same-sex mar­riage would make India the sec­ond largest econ­o­my in Asia after Tai­wan and would be a key right for the coun­try’s LGBTQ com­mu­ni­ty more than four years after the Supreme Court out­lawed gay sex.

A favor­able rul­ing would also make India the largest democ­ra­cy with such rights for LGBTQ cou­ples, but would run counter to the rul­ing Hin­du nation­al­ist gov­ern­men­t’s stance against same-sex marriage.

“Our rela­tion­ship has been unde­fined in a social sense for a long time, and from now on, I want it to be accept­ed like any oth­er cou­ple’s rela­tion­ship,” Sax­e­na said.

Over the past decade, India has seen an expan­sion of legal rights for LGBTQ peo­ple, with most of that change brought about by Supreme Court interventions.

In 2014, it legal­ly rec­og­nized non­bi­na­ry and trans­gen­der peo­ple as a “third gen­der,” and three years lat­er made a person’s sex­u­al ori­en­ta­tion an intrin­sic attribute of privacy.

A land­mark 2018 rul­ing that over­threw a colo­nial-era law pun­ish­ing same-sex rela­tion­ships with up to 10 years in prison expand­ed con­sti­tu­tion­al rights for the gay community.

The rul­ing was seen as a land­mark vic­to­ry for gay rights, and one judge said it “paved the way for a bet­ter future.”

But the legal recog­ni­tion of same-sex mar­riage has met resis­tance from Prime Min­is­ter Naren­dra Modi.

A court case last year said same-sex mar­riage would “com­plete­ly dis­rupt the del­i­cate bal­ance of the coun­try’s per­son­al law.”

Sushil Modi, a mem­ber of Mod­i’s Bharatiya Jana­ta Par­ty, told par­lia­ment in Decem­ber that such mar­riages were “against the coun­try’s cul­tur­al ethics” and had “sev­er­al judges” decide on the issue. said it should not be entrusted.

But Indi­a’s Supreme Court is show­ing signs of chal­leng­ing the gov­ern­men­t’s stance.

In Jan­u­ary, the pan­el, con­sist­ing of the chief jus­tice and two jus­tices, said the gov­ern­men­t’s oppo­si­tion to appoint­ing homo­sex­u­al judges was part­ly due to their sex­u­al ori­en­ta­tion. The Indi­an fed­er­al gov­ern­ment has not respond­ed to the allegations.

By deny­ing same-sex mar­riage, same-sex cou­ples and LGBTQ activists say the gov­ern­ment is depriv­ing same-sex cou­ples of their con­sti­tu­tion­al equal rights and oppor­tu­ni­ties enjoyed by mar­ried het­ero­sex­u­al couples.

“Basi­cal­ly, they have to be treat­ed like any oth­er cit­i­zen. At home, says Ruth Bani­ta, author of Love Rit­u­als: Same-Sex Mar­riage in India and the West.

Mar­riage in India is gov­erned by a vari­ety of laws tai­lored to the coun­try’s reli­gious organ­i­sa­tions, as well as a sec­u­lar law called the “Spe­cial Mar­riage Act” for inter­faith cou­ples. All restrict mar­riage between men and women.